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Tuesday, September 4, 2007

Not enough lines of Coke....

Edward Coke and Righteous Interpositionby Dan Ford, January 6, 2004

Amid the byways of the United States Supreme Court building looms some remarkable statuary. There are many impressive images to be seen, each evoking important people and events in the long history of judicial law. For example, there is one famous frieze atop the inner courtroom’s northern wall which includes the august Old Testament figures of Moses and Solomon. Other significant images appear throughout the building including a fine oak carving of the twin tablets of the Holy Decalogue, or “The Ten Commandments,” on the doorpost of the inner courtroom itself. In effect, all who enter are intended to acknowledge a due respect for the highest court in our land by way of its own reverence for the virtues of both higher law and righteous jurisprudence.

Visitors to the Supreme Court Building are also presented with other important examples of Anglo-American civil history. For example, the Supreme Court’s outermost doors depict several noteworthy scenes from the English foundations of American jurisprudence. The lower panel on one of the massive seven-ton, outer twin doors features the presentation of the famous Great Charter, or “Magna Carta” to King John. In that scene, the nobility is shown interposing a codified charter of essential rights upon the nation’s highest ruler. England will always revere the manner in which its magistrates interposed, or placed the righteous rule of law between the power of a king and the good of the commonwealth.

A more recent but equally significant example of righteous interposition was cast upon another panel just above the one featuring Manga Carta. The historic common law jurist Edward Coke of the early seventeenth century is shown standing against the supposed legal authority of King James I. Similar to King John, King James considered his royal title as superseding the rule of England’s historically constituted laws. Edward Coke, however, saw that the king’s supposed authority as subverting the righteous legacy of England’s common law. As a powerful advocate of constitutional jurisprudence, Sir Edward again took a stand on behalf of English liberties, interposing himself between the supposed royal prerogative and the legitimate rule of law. Due to Coke, the principles of Magna Carta were once again recalled, reinvoked, and reinforced in England.

Nevertheless, the heroic story of Edward Coke is much more involved than one might suppose from that single bronzed impression. That old notoriously self-willed royal potentate, James I, had also schemed to use England’s chancery courts to subvert the rule of law. Instead of using England’s highest courts as genuine vehicles of judicial equity, King James used his own courtrooms as vehicles for arbitrary proceedings and wielding debased judicial decisions. Similar to the king’s claim of a “divine right,” England’s chancery courts under James became corrupt and treated their own rulings as the “law of the land.”

Edward Coke realized the risk to his nation, and held fast to the precepts of the common law. He boldly spoke out in opposition to judicial activism. But the clever English justices soon targeted their outspoken opponent. Sir Edward Coke was the Chief Justice of the King’s Bench, when he was first viciously attacked by the High Lord Chancellor for not capitulating to the tyranny of the Courts. Coke was told that his scruples had undermined the opinions of the other justices. “You, sir, desire to speak too much and not hear other men; this becomes a Pleader and not a Judge.” (The Remains of Bacon, Lord High Chancellor of England, 1656 edition).

Coke responded that the high courts themselves had become corrupt and lacked their original constitutional fidelity, writing: “But now [court] readings having lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, like rather to riddles ... and all their studie is to find nice evasions out of statute. By the authority of Littleton, ancient readings may be cited for proofe of the law; but new readings have not that honour, for that they are so obscure and darke.” (The First Part of the Institutes of the Lawes of England ... Section 481, 1656 edition). The High Lord Chancellor was not convinced. Consequently, Coke was removed from office — but the war was far from over.

Though he had been abruptly removed from a highly revered seat of justice, Coke was not disgraced. Throughout the 1620’s he led England’s High Court of Parliament in a powerful struggle against the unwieldy proceedings of usurping judges. Under the inspired leadership of Coke, Parliament found the resolve to interpose its own authority to reign in England’s crown and courts. As a result of Coke’s leadership, Parliament passed its famous Petition of Right (1628) which delineated specific undeniable rights which were to be recognized within all English courtrooms, and the new king, Charles I was compelled by the force of overwhelming popular sentiment to sign it.

Because of Coke’s uncompromising, unrepentant stance against unconstitutional judicial tyranny, the rule of right was officially recognized as the rule of law. Since the days of Sir Edward Coke, the legislative body of England has been recognized as holding an essential constitutional check against excessive executive and judicial power, a check that was later written into Article III of our own Constitution of the United States of America (1787).

Essentially because of the stalwart actions of Coke and other English jurists, our nation inherited a governing system that refused to recognize the decrees of any one person, of any one court, or of any one branch of government as the organic laws of the land.

Similar to the unrestrained justices who accompanied the despotic regime of James I, many of our courtrooms have lately decreed rulings, which presuppose that their opinions reign as the highest law of the land. Edward Coke and the English Parliament knew otherwise; our nation and constitutional framers knew otherwise. Like Coke, our founders interposed themselves against a despotic royal administration and its unaccountable Courts. Driven by devotion to higher law, the historic principles of righteous civility overcame Britain’s aggressive scheming and artful judicial craft, and our nation enjoyed the guarantee of “unalienable rights” honored by every administration, every legislature, and every American court.

Well, that was then, and now is now — and the old face of an arbitrary, unaccountable judiciary looms again. Courts once again seem to evoke unimaginable “rights” from the thin air of raw determinism, and at the same time, disavow many of the time-honored “unalienable rights” derived from the Almighty.

We might ask, “Where is our Edward Coke when we need him?” Our founders were a marvelous group of Cokian protégés who all knew the fine distinctions between righteous jurisprudence and artful despotism. They certainly understood the essential principles of law — and their constitutional English precedent. As a chief justice, Coke had interposed himself to the point of being removed from a highly revered judicial seat by an uncontrollable judiciary. But it is his image that adorns our greatest hall of justice — not those of his enemies. History judges Coke as a hero, even though his own peers judged him inflexible and unrepentant.

If you are wondering where a man of our day might be found who will honor his oath of office to God and country and selflessly interpose himself against our new brand of judicial tyranny, I suggest searching the symbolism built into the nation’s Supreme Court building itself, because the walls and floors of its every corridor are composed of the most rich and stately Alabama marble.